That is what happened to a client of ours recently. He came to our office after being charged with residential burglary. In Washington, burglary means to unlawfully enter or remain in a building with the intent to commit a crime. If the building that you go into is the home of another person, then that increases the seriousness of the burglary.
In our case, the client hired us to defend him after he was accused of burglary for a situation he told us was him merely trying to assist a friend.
This “friend” was a user of people. She manipulated and lied to others to get her way.
In our case, and totally unbeknownst to our client, the friend had been dating another man who had lived at his family’s home. Inside the home was a mirrored jewelry box, and our client’s friend decided to steal this box after she and her boyfriend broke up.
She recruited our client to help her, telling him that her ex-boyfriend was keeping some of the property belonging to our client’s friend.
Of course, our client didn’t have any reason to believe he was walking into a home illegally. She went ahead and obtained access to the home without breaking and entering. At this point, there was nothing to tip off our client that he was in fact an accomplice to a burglary. She grabbed the jewelry box (which actually belonged to her ex’s mother) and handed it to our client, and the two walked out of the house without talking to or seeing anyone.
Unfortunately for our client, just then, the mother drove up and got out of her car. A confrontation ensued, and the police were called. Our client set down the jewelry box and was cooperative with police, telling them the story he had been given.
The police arrested our client and his “friend.” Then they both got hit with burglary charges. And up to this point in his life, our client had a spotless record, he was a young college student, he was from the Snohomish County area, had a full-time job, he was a model citizen. His poor judgment in selecting dishonest friends was his only sin.
We tried just about everything to get the case dismissed prior to a jury trial. Here’s the thing about trial: it’s risky. We use this analogy to our clients often: imagine you are playing a round of golf and you feel a tear in your shoulder after a drive on the 10th hole. You go to your doctor after a few days when the pain hasn’t gone away. What does your doctor tell you? They can try home remedies, maybe some physical therapy, perhaps he’ll prescribe certain medications to try. But usually, the last resort for the doctor is surgery. Why is it the last resort? Because it’s a sad fact that people regularly die on the operating table from surgical complications, even for “routine” or “elective” procedures. A patient takes the risk that the surgeon is skilled, that his body reacts well with anesthesia, that there are no complications and so forth.
A jury trial is the same way. In our case, we had an innocent client (we love those!) but still, there was a chance that a jury might convict him of a crime he didn’t commit (the metaphorical “death” during surgery). The risk of that was out of our hands, and out of the client’s hands. So we didn’t recommend our client go to trial lightly.
But what other choice did he truly have? He was innocent of the crime, and the government refused to see it his way. The victim of the crime was rightly furious, but she blamed our client and the ex-girlfriend, not knowing that the ex had lied to our client as well. Not that we didn’t try to convince her, but after all, we only had our client’s word and little other proof. One of my biggest concerns was this: if I can’t convince the victim that our client was blameless, how was I going to convince the jury?
In the end, we were left with no choice at all. The case proceeded to jury trial. Early on in the process, the “friend” and co-defendant of our client, fled the area and the judge issued a warrant for her arrest. That meant that our client got a trial all to himself. This turned out to be a very good thing, because he could correctly point the finger at the empty chair where she was supposed to be sitting and put the entire blame on her.
The case lasted about a week. The client testified and cleanly told the jury his story. The jury struggled with the evidence, and asked the judge several legal questions about how much exposure our client would have legally if they were to find he was an accomplice to his friend. The judge basically told them to go back to the jury room and try to reach a verdict.
After more than a day of deliberations, the jury hung, meaning all 12 jurors couldn’t agree, one way or another. Sometimes people don’t realize this, but the jury must be unanimous to reach a verdict of either guilty or not guilty. When there’s a split of jurors, the judge will make every effort to see if the jury needs more time to work through the deliberations. But sometimes, no amount of additional time will matter- the jury is just deadlocked.
That’s what happened to our client. The jury hung and therefore a mistrial was declared. That meant the client was facing a second trial on the case. The stress on him was enormous. Criminal Rule 3.3 says that after a mistrial, the government would have a new 90 days to bring him to trial. This could potentially mean months more waiting and anxiety for our client.
A hung jury can be a good or bad thing for a client. In our case, there was one thing that happened that made it a very good thing: we were able to learn how the jury was split. Because a jury that is deadlocked 11-1 in favor of guilt is a very different thing than a 50/50 split. If you think of the first trial as a sort of “focus group,” then how the jury ends up splitting can tell you something about the odds of a second trial. If most of the jurors are against you, it shows that perhaps a different approach needs to be taken, or it can force the client to see the reality of the case more clearly.
In our client’s case, the jury was deadlocked 9-3 in favor of acquittal. The vast majority of the jurors had believed our client’s testimony. This information had the effect of supercharging our renewed efforts to negotiate a favorable resolution. The prosecutor knows that the focus group of the first trial went against them, so their position many times will soften. There’s a practical aspect as well: bringing a criminal charge against a defendant is time-consuming and resource-intensive. Having to do it a second time, after members of the community on the jury have just told you that your case doesn’t have legs, is a daunting proposition. Much of the time, prosecutors don’t have the stomach for it.
And that was the case here. The prosecution dismissed the felony charge, and our client wasn’t tried a second time.
Some months later, the police found and arrested our client’s “friend” and took her to jail. She ended up pleading guilty as charged to the residential burglary, and did a significant amount of time in jail. Our client spent no time in jail other than a few hours after his arrest.
Justice was done, although it didn’t arrive in a straight line. Our client made the right call to hire our office, because we stuck with him every step of the way. The hung jury initially looked to be a source of major anxiety, but we were able to leverage it in favor of the client.
We won’t stop fighting for our clients!
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